Applicant in classical Ghanaian case of Tuffour vrs Attorney General dies

Dr Amoako Tuffour died at the 37 Military Hospital in Accra on Thursday (21 January 2021) after a short illness

Dr Amoako Tuffour, a leading member of the New Patriotic Party (NPP) in the Ashanti Region has died.

He died Thursday (21 January 2021 ) morning at the 37 Military Hospital in Accra.

Dr Tuffour, 77, contributed to the electoral fortunes of the Akufo-Addo campaign during the 2016 elections in the Ashanti Region.

A shot to fame

The Applicant in the classical Ghanaian case entitled “Tuffour versus Attorney General”, and former senior lecturer in civil engineering at the then University of Science and Technology (now Kwame Nkrumah University of Science and Technology), died after a short illness.

According to a summary of the classical case on the Ghana Law Hub portal, Dr Tuffour, “took the bold step of issuing a writ seeking a declaration that Justice Apaloo was on 24 September 1979 (the time that the 1979 constitution came into force) deemed to have been appointed as Chief Justice of the Republic and as a result became President and member of the Supreme Court.

He also sought a declaration that the nomination by the President of Justice Apaloo, his subsequent vetting and his rejection by the Parliament was null and void. With this, the stage was set for a legal battle”.

Dr Tuffuor’s lawyers included the then practicing lawyer Nana Addo Dankwa Akufo-Addo, now President of the Republic and Tsatsu Tsikata (current lawyer for the Petitioner in the case of John Dramani Mahama versus the Electoral Commission (EC) and Nana Addo Dankwa Akufo-Addo). The state on the other hand was represented by Mr. Joe Reindorf and his deputy A.L Djabatey.

The case brief indicates that “the Attorney-General, Mr Joe Reindorf was intent on “killing” the case at the earliest opportunity. He, therefore, raised a preliminary objection questioning whether Dr. Tuffour, was the right person to bring an action in defence of Justice Apaloo.

In his view, the matter concerned Justice Apaloo and his capacity to act as Chief Justice. Dr Tuffuor’s lawyers in response argued that the Plaintiff was seeking to enforce certain provisions of the constitution regarding the tenure of office of the Chief Justice.

They further argued that the Chief Justice’s office and his tenure was of interest to every Ghanaian. The court sided with the lawyers for the Plaintiff and dismissed the Attorney-General’s objection”.

“With the preliminary objection out of the way, it was time to go into the merits of the case. As one would expect, Joe Reindorf opposed the grounds put forward by Dr Tuffuor’s lawyers. Joe Reindorf argued that the 1979 constitution had ushered in a new era.

He contended that before the 1979 constitution came into force, the hierarchy of the courts ended at the Court of Appeal and therefore stressed that no justice could have therefore held the office of Justice or Chief Justice of the Supreme Court.

In his estimation, Justice Apaloo was only Chief Justice of the Court of Appeal and in view of that needed to go through the approval process for appointment as both a Justice of the Supreme Court and also Chief Justice”.

“Mr Reindorf had other ideas. He argued that even if it was accepted that Justice Apaloo became Chief Justice by default on the coming into force of the 1979 constitution, by accepting to appear before the Appointment Committee of Parliament, he should be deemed to have waived any immunity provided under the constitution and should accept the consequences of his actions”.

The court however dismissed the Attorney-General’s argument. “First of all, the court disagreed with the Attorney-General on the point that Justice Apaloo was only Chief Justice of the Court of Appeal under the 1969 constitution and therefore could not be Chief Justice under the 1979 constitution. In the view of the court, “the Chief Justice in both constitutions presided over all courts within the superior court of judicature.

He was the president and member of all those courts not by reason of a direct or specific appointment to any of them but by virtue of his status as the head of the superior court of judicature.” The court continued: “…True, the institution during the decade before the present constitution lost one of its departments, but was not dismembered; it remained intact and remained as one superior court of judicature.”

The court, therefore, affirmed Justice Apaloo as the substantive chief justice under the 1979 constitution. The court further dismissed the Attorney-General’s argument that by appearing before the appointments committee of parliament, Justice Apaloo knew and understood what he was doing and should therefore not be shielded from the consequences of such actions. The court stressed: “The decision of the Chief Justice to appear before parliament could not make any difference to the interpretation of the relevant article under consideration unless those decisions were in accordance with the postulates of the constitution.”

With these pronouncements, the roadblocks in the way of Justice Apaloo were cleared. He went on to hold the position of Chief Justice until his eventual retirement in 1986. He was the first Chief Justice in Ghana’s history to have served his full term and retired.

The case of Tuffuor v. Attorney-General is generally regarded as the locus classicus of constitutional interpretation in Ghana. Delivering the Court’s unanimous decision, His Lordship Justice Sowah as he then was, observed that a written Constitution has both a letter and a spirit, and for that matter, it ought to be interpreted as a “living organism capable of growth and development”. Justice Sowah further observed that there was the need to take note of the “principle of constitutional construction which gives effect to the intent of the framers of [the Constitution]”.

According to Justice Sowah, every word in the Constitution has an effect and every part must be given effect. Over the years, this dictum of Justice Sowah in the Tuffuor case has been cited to support almost every decision of the Supreme Court while exercising its interpretation and enforcement jurisdiction.

Wilberforce Asare

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